R. v. Lee Date:, 2014 BCPC 404

Citation: R. v. Lee Date: 20140402 2014 BCPC 0404 File No: 27743-2-C Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YIU HUNG LEE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T. J. WRIGHT Counsel for the Crown: E. Yao Counsel for the Defendant: P. Briggs Place of Hearing: Prince Rupert , B.C. Date of Judgment: April 2, 2014 [ 1 ] These are my reasons for judgment on a ruling on a voir dire.

[1] These are my reasons for judgment on a ruling on a voir dire.

INTRODUCTION [2] The accused is charged that on April 4, 2012, he unlawfully produced marihuana, and further he possessed marihuana in anamount exceeding three kilograms for the purposes of trafficking. [3] Evidence has been heard on a voir dire that on April 4, 2012, RCMP officers, including members in both the Prince Rupert,B.C., RCMP ("City") and North District Drug detachments executed a search warrant at a rural property located within the boundaries ofthe District of Port Edward, B.C., a community approximately 15 kilometres from Prince Rupert (the "search warrant" and the"property").

Travelling by road west on Highway 16, the property is approximately 25 kilometres east of Prince Rupert. [4] The search warrant authorized the police to search a building on the property referred to as the lodge, but specifically deniedtheir request to search another building on the property referred to as the white trailer (the "lodge" and the "white trailer").

In fact,during the execution of the search warrant, the police entered both the lodge and the white trailer. [5] They entered the white trailer based on claims of officer safety, namely for the purposes of clearing or securing that structureand not to search it. They did not locate or seize any evidentiary items from the white trailer, but they did take from there a set of keys,which they used to enter the lodge. [6] In the lodge they located and arrested the accused and found a large multi room marihuana grow operation.

They seized fromthe lodge numerous marihuana plants at various stages of growth, and grow equipment, including lights, ballasts and fans. ISSUES [7] The issue on this voir dire is the admissibility of the evidence seized by the police from the lodge as a result of their executionof the search warrant. The accused is not disputing the validity of the search warrant itself. Instead, his challenge is based on theexecution of the search warrant.

The accused argues that the entry by the police into the white trailer was unlawful, and it was donewithout a warrant, that the entry amounts to a search, and that the search was not otherwise authorized by law. Accordingly, the accusedargues that the police breached his s. 8 Charter of Rights and Freedoms (the "Charter") right to be secure against unreasonable searchand seizure, and that the evidence obtained from the lodge should be excluded pursuant to s. 24(2) of the Charter based on the factorsand analysis set out in R. v.

Grant, 2009 SCR 32 (SCC) ("Grant"). [8] The Crown and the defence agree that the white trailer was the accused's residence and, therefore, he has standing to make thisCharter application. [9] The Crown concedes that the entry by the police into the white trailer was in fact a search and was without a warrant. [10] It is well settled law that where, as here, there is a warrantless search that search is presumed to be unreasonable, and a breachof s. 8 of the Charter, unless it can be found to be justified, and therefore found reasonable. [11] Pursuant to the test established in R. v.

Collins, (SCC), [1987] 1 SCR 265, the Crown argues that the searchwas reasonable. Collins sets out that warrantless searches are deemed to be reasonable if (

a) they are authorized by law; (

b) the law itselfis reasonable; and (

c) the manner in which the search was carried out was reasonable. [12] The Crown bears the burden of demonstrating on the balance of probabilities that a warrantless search was authorized by areasonable law and was carried out in a reasonable manner.

In this case the Crown claims that the entry into the white trailer wasauthorized by law; specifically, that the police have a common law right to enter premises without a warrant where there are officersafety concerns. [13] There is no dispute between the Crown and the defence that the police do in fact have a common law right to search based onofficer safety, that that law is a reasonable one, and the manner in which the search itself was carried out was reasonable.

The keyconflict between them is whether in the circumstances of this case the Crown has laid the necessary evidentiary foundation to establish,and it is their onus, that the police officers had reasonable grounds to believe there was a threat to the police, and that therefore a searchbased on officer safety grounds was justified.

The defence claims that the Crown has not laid that foundation and therefore the search ofthe white trailer was not authorized by law. [14] If the Crown claim of officer safety does not prevail, then, as they have not satisfied the test in Collins, there will be a findingthat there was a s. 8 Charter breach.

In those circumstances, the Crown says that taking into account various factors, including that therewas no evidence seized from the white trailer, and no real connection between the search of the white trailer and the lodge, that theevidence seized from the lodge should be admitted into evidence based on the analysis set out in Grant. [15] The defence argues, again based on Grant, that the evidence should be excluded because, amongst other things, the entry intothe white trailer was done during the execution of a restricted search warrant, that is a search warrant that clearly set out that a search ofthe white trailer was not authorized, and the police officers deliberately ignored that restriction.

THE FACTS [16] There was no significant dispute about the facts. On April 4, 2012, at approximately 1:00 p.m., further to a telewarrantapplication made to the Judicial Justice Centre, Judicial Justice D. Padron issued a search warrant to search the lodge, which was locatedat 112 Rainbow Lake Crescent, Port Edward, B.C., for marihuana plants and documents. The search was authorized to take place laterthat day, between the hours of 2:30 p.m. and 8:30 p.m. [17] The search warrant and information to obtain (the "search warrant" and the "ITO") were filed as exhibits on the voir dire.

[ 18 ] The affiant of the ITO was Constable Manuel Bourque, who testified on the voir dire. Constable Bourque had been a police officer since September 2009, and therefore had approximately two and a half years of experience at the time of the execution of the search warrant. Constable Bourque had no direct knowledge of the information in the ITO. Rather, he was relying on the evidence of two other police officers, Corporal Robert Christianson and Constable Jason Gillis. [ 19 ] Constable Bourque, Corporal Christianson, Corporal Chad Chamberlain and Constable Lana Muirhead testified for the Crown on the voir dire.

The accused did not testify or call any evidence on the voir dire. [ 20 ] In addition to the search warrant and ITO, a book of photographs, a search warrant planning report, a sketch of the interior of the lodge, and admissions of fact were filed as exhibits on the voir dire. The admissions of fact included the expert opinion evidence of Constable Steve Richards, namely his curriculum vitae and his written report dated June 26th, 2013.

There were certain other admissions of fact made by reading the admissions directly into the court record. [ 21 ] I pause here to note that with the four police officers and the exhibits and admissions of fact, the Crown put in its entire case on the trial within the confines of the voir dire. There is an agreement between the Crown and the defence that any evidence ruled admissible on the voir dire will become evidence on the trial itself. [ 22 ] A

summary of the information in the ITO is as follows: A. On April 3, 2012, Corporal Christianson told Constable Bourque that on that date, at approximately 12:56 p.m., he went to the property and made observations of the lodge and the white trailer. The lodge was described as a large building set back approximately 30 feet from the road. The white trailer was on the same property as the lodge and was approximately 150 feet from the roadway. From the roadway he smelled an odour of vegetative marihuana coming from the lodge. B.

On April 3, 2012, Constable Bourque spoke to Constable Gillis, who informed him that on that date he, Constable Gillis, had spoken to two informants, A and B, who told him collectively that there was the smell of growing marihuana coming from the lodge within the previous week, that the smell was coming from the lodge, that there was a marihuana grow operation at the property, and that there was a person in the white trailer. C.

On April 3, 2012, Constable Bourque spoke to Constable Gillis, who informed him that he attended to the District Office at Port Edward and had learned that as of May 3, 2010 the title to the property was in the name of Gary Cho [phonetic], that the property consisted of two blocks of land, A and D, and the only buildings listed on Block A was the lodge, and the only building listed on Block D is a brick shed. D. On April 3, 2012, Constable Bourque spoke to Constable Gillis, who informed him that he had called Health Canada and learned there were no licences issued to grow marihuana at the property. E.

In Constable Bourque's experience, people who reside in a residence retain and store within that residence documents, such as telephone bills, utility and heating bills, which contain names, addresses, and account numbers, which would provide evidence that they in fact reside there. F. On April 3, 2012, at approximately 9:53 p.m., a previous application for a search warrant for the property was made by telewarrant to the Judicial Justice Centre. At 10:48 p.m., on April 3, 2012, the application was denied by Judicial Justice A. Campbell, whose reasons for denial were attached as Exhibit B.

The application was denied because of concerns about a lack of evidence confirming that the smell of vegetative marihuana came from the lodge itself, and a lack of details about the white trailer. G. To address the concerns of Judicial Justice A. Campbell, Corporal Christianson went back to the property on April 4, 2012, and later that day reported his observations back to Constable Bourque.

Corporal Christianson said that he went to the property approximately 6:08 a.m. and walked around the property lines around the property and confirmed that there was an odour of vegetative marihuana coming from the lodge and not from any neighbouring residences. He also provided further details about the white trailer. On April 4, 2012, Constable Gillis also informed Constable Bourque that he had attended to the property at approximately 6:08 a.m. on that date and had smelled vegetative marihuana coming from the direction of the lodge. H.

On April 4, 2012, Constable Gillis informed Constable Bourque that earlier that day, at approximately 7:25 a.m., he had used a thermal detection device to do thermal imaging of the lodge. The thermal imaging indicated that there was a large heat source in the basement and in a large plywood add-on to the basement. In the course of performing the thermal imaging while walking the property lines of the property, Constable Gillis again smelled vegetative marihuana coming from the direction of the lodge.

Constable Gillis also informed Constable Bourque that the white trailer was at the back of the property, 200 feet from the road and a hundred feet to the southwest of the lodge. The lodge and white trailer were all located inside a chain link fence.

[ 23 ] There was nothing in the ITO that dealt with any claim by the police officers that there were police officer safety concerns in executing the search warrant at the property, including either at the lodge or the white trailer. While Judicial Justice Padron did grant the search warrant requested by the police to search the lodge, he specifically denied the request to search the white trailer.

Judicial Justice Padron made it abundantly clear that the request to search the white trailer was denied, and the reasons for the denial. [ 24 ] He made changes to the search warrant itself, which he initialled, and provided written reasons for his decision denying the search of the white trailer.

The amended search warrant, together with the written reasons for his decision, were sent to Constable Bourque by facsimile and received by him. [ 25 ] On the search warrant form itself, under the preprinted portion of the form with the words "set out things", the following had been inserted by Constable Bourque by typing in the words "marihuana plants and documents pertaining to residency". Judicial Justice Padron had crossed out the words "pertaining to residency", and had added by hand the words "bearing an address of 112 Rainbow Lake Crescent, Port Edward, B.C.".

Therefore the inserted words as amended read "marihuana plants and documents bearing an address of 112 Rainbow Lake Crescent, Port Edward, B.C.". [ 26 ] Then below, approximately halfway down the search warrant form, under the preprinted portion of the form with the words "are to be found in the following place or premises", the following had been inserted by Constable Bourque by typing in the words "lodge and white trailer".

Judicial Justice Padron had crossed out the words "and white trailer", and therefore the inserted words as amended read "lodge". [ 27 ] The written reasons for the denial of the search of the white trailer were set out in a one-page document from Judicial Justice Padron (the "denial decision"). The exact wording of that denial decision was as follows. At the top of the one-page document were the words [as read in]: PRODUCTION ORDER/SEARCH WARRANT APPLICATION Reasons for Decision dated April 14, 2012, to Constable E. Bourque, Prince Rupert RCMP, from Judicial Justice Padron.

REASONS FOR DECISION The application is denied in relation to the trailer on the property. There is insufficient evidence in the ITO to establish reasonable grounds to believe that evidence sought will be found in the trailer. While it is possible that "documents of residency" may be found in the trailer, it is equally possible, based on the information provided, that the trailer is either unoccupied or occupied by a separate tenant, and that "possibility" does not equate to "reasonable grounds to believe".

Neither is there any evidence to suggest that marihuana plants will be found in the trailer. [ 28 ] At the bottom of this single page is the following [as read in]: Any reapplication must refer to this denial and state what further or new information is provided as a basis for the reapplication. [ 29 ] That is the end of the quote and the denial decision. [ 30 ] The police did not take any steps to gather further evidence to reapply to obtain an order authorizing a search of the white trailer, based on officer safety grounds or otherwise.

Therefore, while the subsequent search of the property and the lodge was pursuant to the search warrant issued by Judicial Justice Padron, any search of the white trailer was specifically not authorized, and in fact had been requested and denied. [ 31 ] Approximately ten police officers were tasked to participate in the execution of the search warrant. This was a combined force of officers from the City detachment of the Prince Rupert RCMP and the RCMP North District Drug

Section detachment, based in Prince Rupert. [ 32 ] The search warrant was received by Constable Bourque just before 2:00 p.m. on April 4, 2012, a briefing was held by the police officers in Prince Rupert between approximately 2:30 p.m. and 3:00 p.m. on that day, and they arrived at the property later that afternoon to execute the search warrant at approximately 4:00 p.m.

The main participants in the briefing were Constable Bourque, Corporal Christianson, and Corporal Chad Chamberlain. [ 33 ] Corporal Christianson, a ten and a half year member of the RCMP, who had been a member of the RCMP Emergency Response Team since 2004, and who had been involved in the execution of approximately 100 search warrants, was in charge of the briefing and the execution of the search warrant. [ 34 ] Constables Bourque and Muirhead and Corporals Chamberlain and Christianson were all quite clear in their evidence that Corporal Christianson was in charge in both preparing for and the execution of the search warrant. [ 35 ] Corporal Christianson was intimately aware of the marihuana grow-op investigation, having attended to the property the day before and that morning to gain evidence for the ITO.

As well, he was actively assisting Constable Bourque, who was relatively inexperienced in seeking search warrants, in the preparation of the ITO. [ 36 ] Constable Bourque agreed that he had read the denial decision, but could not recall whether he had given that particular document to Corporal Christianson, or whether it had been brought into the briefing room itself.

[ 37 ] Constable Bourque said that before the briefing began, he had met with and had a conversation with Corporal Christianson wherein they discussed, in general terms, the denial by Judicial Justice Padron, and that Corporal Christianson told him that while they would not search, they would enter the white trailer to secure it because of officer safety concerns. While Corporal Christianson did not have a specific recall of that conversation, he said he was aware of the denial itself, because that was clear from the face of the search warrant itself.

Corporal Christianson said he had no recall of reading the denial decision, and he agreed that he had decided to enter the white trailer because of officer safety concerns. [ 38 ] Both Corporal Chamberlain and Constable Muirhead said they never saw or read the denial decision. [ 39 ] Accordingly, I find the denial decision was not read by Corporal Christianson and Chamberlain and Constable Muirhead prior to the execution of the search warrant. [ 40 ] I pause here to say that I find it surprising that Corporal Christianson would not have taken the time to review the documentation received from the Judicial Justice Centre, which included the search warrant and the denial decision.

He knew there had been a denial of the request to search the white trailer, and it would have been both reasonable and appropriate for him to examine the documentation received back from the Judicial Justice Centre to determine what the reasons, if any, were for the denial. [ 41 ] All of the police officers who testified in the voir dire agreed that they were aware, and it was made clear to the other police officers attending the briefing by Corporal Christianson , that the request to search the white trailer had been denied.

That fact was obvious from the face of the search warrant itself, and the back of that document was signed by each of the ten police officers who were at the briefing as confirmation that they had in fact read it. [ 42 ] At the briefing, the mechanics of the execution of the search warrant and officer safety were the main themes. To deal with those issues, Corporal Christianson prepared a written document which was titled "North District Drug

Section Search Warrant Planning Report" (the "planning report"). This is the same document I referred to earlier as the "Search Warrant Planning Report", which was filed as an exhibit. Each of the police officers attending the briefing was assigned a specific task, and they initialled those sections of the planning report that set out their respective responsibilities.

Although it was made clear to all of the police officers attending the briefing that the search warrant did not authorize the searching of the white trailer, they were instructed by Corporal Christianson that for officer safety concerns the white trailer would be cleared or secured. [ 43 ] Corporal Chamberlain together with Constables Bourque, Muirhead and Ryan Rooke were tasked with securing the white trailer, a process which they knew would involve entering those premises.

They were instructed by Corporal Christianson that they were not to seize any evidence from the white trailer. [ 44 ] The officer safety concerns articulated by the police officers who testified in the voir dire to justify the securing of the white trailer can be summarized as follows: (

a) the property was 25 kilometres from Prince Rupert and therefore it would take a significant amount of time, approximately 15 minutes by Highway 16, to get support from emergency services from Prince Rupert, namely firefighters or ambulance attendants, if there was an urgent situation that developed which required their assistance; (

b) the proximity of the white trailer to the lodge and the fact that there were no obstructions between the two. The concern was that police officers executing the search warrant at the lodge would be exposed and vulnerable to a person or persons inside the white trailer; (

c) the belief that there were one or more persons on the property who resided in the white trailer who were maintaining the marihuana grow operation; and (

d) it is not uncommon for there to be booby-traps and weapons at marihuana grow-ops to combat other criminal elements who might try to steal those narcotics, and the police in their execution of search warrants. [ 45 ] However, what I found to be striking was a lack of information available to the police to make a determination that there were in fact officer safety issues. They did not know who might be at the property. They had no information about any vehicles being there, so they were not able to run any record checks about the owners of them.

Therefore, there was no evidence that anyone on the property had a criminal record. There was no evidence of any firearms being at the property. [ 46 ] At page 3 of the planning report there are preprinted portions of the form that deal with these issues, and in each portion "unknown" was inserted. Corporal Christianson, who was the person making the decision to enter for officer safety grounds, agreed that he had very little information to go on.

All he knew for sure was that there was the smell of vegetative marihuana coming from the lodge, and that it was reasonable to assume there was a marihuana grow-op there. He said that the safety plan was based on a great deal of unknowns, and since he did not know the answer to those unknowns, out of an abundance of caution he took the position that it would be reasonable for him to assume that all of the unknowns were in fact present; that is, there were in fact firearms, that a person or persons present had a criminal record, et cetera.

Therefore, for the most part, his decision to secure the white trailer was based on those assumptions. [ 47 ] Further, Corporal Christianson said that it was his practice in most instances to enter and secure any outbuildings or other structures in the immediate vicinity of any building for which he had been granted a search warrant. Furthermore, he would do that even in circumstances such as here where the Judicial Justice of the Peace, who had authorized the search warrant, had specifically refused to allow the search of that adjacent building or structure.

[48] Corporal Christianson agreed that he had enough members to do a search of the property, including the lodge, and securing thewhite trailer. He also agreed that there were no exigent circumstances that arose during the search of the property that would justify theentering into the white trailer. The decision to search, based on officer safety grounds, was made in the brief interval between when thesearch warrant was received and the briefing was commenced. [49] When the police officers arrived at the property at approximately 4:00 p.m., two of the police officers cut the lock on the chainlink gate.

Corporal Chamberlain together with Constables Bourque, Muirhead and Rooke immediately went to the white trailer. Corporal Chamberlain was the leader of the white trailer team. Other police officers, including Corporal Christianson, went to the lodgeto attempt to gain entry there. [50] Corporal Chamberlain went to the door of the white trailer and announced several times with words to the effect "police, searchwarrant". The door to the white trailer was unlocked and all four police officers entered and went through the premises, including theliving room, bathroom, and bedroom.

There was no one in the white trailer. There was no evidence seized from the white trailer by thepolice officers. Corporal Chamberlain did see a set of keys on a table in the living room. The police officers were in the white trailer forthree to four minutes in total. They then left and went to the lodge to assist in the search there. [51] While the white trailer was being secured, Corporal Christianson and several other police officers were knocking on doors onthe lodge, but no one was answering, and the doors were locked.

There was some confusion in the evidence about how the keys weretaken from the white trailer, but it appears that Corporal Chamberlain was aware that there were difficulties in getting into the lodge andhe took the keys from the white trailer with the idea that they might open a door at the lodge. The keys did open one of the doors, andthe police officers gained entry in that way.

Corporal Chamberlain explained that the reason he decided to take the keys was becauseotherwise the police would have had to damage the doors to the lodge to gain entry, and that would also have made it difficult to securethe lodge when the police left the scene. The keys were not seized by the police and are not being tendered as evidence by the Crown. [52] In the lodge the police found a large, multi-room marihuana grow operation, and in one of the rooms in the back of the lodgethey found and arrested the accused.

Corporal Chamberlain found the accused and Constable Muirhead arrested him, and they bothidentified the accused in court. There were no other persons found in the lodge. There were 3,354 marihuana plants found in the lodgeat varying states of maturity.

Amongst other things, the police also seized 113 1000-watt light bulbs, 113 metal light shrouds, fivepropane-powered carbon dioxide generators, and three inline fans. [53] The evidence of the expert, Constable Steve Richards, was that the estimated value of a single crop of the marihuana wasbetween 1,132,000 and 2,012,800, that four crops a year could be produced, and that this was a commercial grow operation, and themarihuana was possessed for the purposes of trafficking. ANALYSIS 1.

WAS THE SEARCH OF THE WHITE TRAILER REASONABLE? [54] Submissions were made on November 29th for the defence, and December 18, 2013 by the Crown and then the defence inreply. Both counsel referred the court to a number of decisions, some of which I will make specific reference to in my reasons. [55] However, since submissions were completed, a decision was given from the Supreme Court of Canada, which I consider to berelevant. The decision is R. v. MacDonald, 2014 SCC 3 MacDonald dealt with a situation where a police officer, a SergeantBoyd, responded to a noise complaint at the defendant's home.

When the defendant opened the door, Sergeant Boyd saw that thedefendant was holding an object in his hand, hidden behind his leg. Despite being asked twice by Sergeant Boyd, the defendant refusedto show or say what was in his hand.

Sergeant Boyd pushed the door open a few inches, saw that the item was a handgun, pushed hisway into the residence and disarmed the defendant. [56] MacDonald provides a useful overview of a number of the legal principles that are relevant to the case at bar, in particular to thecommon law authority of the police to conduct what the court and MacDonald refer to as a "safety search". [57] On the issue of whether or not the entering into the residence by the police was a "search", Justice LeBel, speaking for themajority, wrote at 25 and 26 as follows:

(1) Did Sgt. Boyd’s Action Constitute a Search? [25] R. v. Evans, (SCC), [1996] 1 S.C.R. 8, is a leading case on what constitutes a “search” for the purposes of s. 8. The facts of that case were not dissimilar to those of the instant case in that the search was carried out by police at the doorstep of theaccused person’s home. Sopinka J. laid down the following test for determining whether a police action constitutes a “search”: ... it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of theCharter comes into play.

As a result, not every form of examination conducted by the government will constitute a “search” forconstitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacyinterest of individuals does the government action in question constitute a “search” within the meaning of s. 8 . [Emphasis added; para.11.] In other words, a s. 8 search “may be defined as the state invasion of a reasonable expectation of privacy” (R. v.

A.M., 2008 SCC 19,[2008] 1 S.C.R. 569, at para. 8) [26] There is no question that individuals have a reasonable, indeed a strong, expectation of privacy in their homes (R. v. Godoy, 1999

established that the police have an implied licence to approach the door of a residence and knock. Doing so will not be considered aninvasion of privacy constituting a search if the purpose of the police is to communicate with the occupant. But “[w]here the conduct ofthe police . . . goes beyond that which is permitted by the implied licence to knock, the implied ‘conditions’ of that licence haveeffectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder” (Evans, at para.15).

In such circumstances, the police action constitutes a “search”. [58] Entry by the police into a person's residence is a significant intrusion into their privacy and does constitute a search. There wasno dispute between the Crown and the defence that the entry by the police amounted at law to a search. While the police havecharacterized their entry into the white trailer as "clearing" or "securing", it was at law a search.

Accordingly, the actions of the police inentering the white trailer, which the Crown and defence agreed was the residence of the accused, amounts to a search. [59] The court in MacDonald next turned to the issue of whether or not the search was reasonable. The analysis followed by thecourt is applicable to the case at bar. At paras. 29 to 31, Mr. Justice LeBel wrote:

(2) Was the Search Unreasonable? [29] The framework for scrutinizing warrantless searches for Charter compliance was summarized by this Court in Mann: [Warrantless] searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the testestablished in R. v. Collins, (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if(

a) they are authorized by law, (

b) the law itself is reasonable, and (

c) the manner in which the search was carried out was alsoreasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search wasauthorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32. [30] Applying the Collins test to the facts of the instant case, I find that the search carried out by Sgt. Boyd was reasonable. (

a) The Search Was Authorized by Law and the Law Itself Is Reasonable [31] Where the first prong of the Collins test is concerned, a search will be authorized by law if it is authorized by a valid policepower. In Godoy, Lamer C.J. affirmed that the police have a common law duty to protect life and safety. Nevertheless, “[p]olice powersand police duties are not necessarily correlative” (Mann, at para. 35). Indeed, the police power to search is not unlimited. This power isconstrained by a requirement of objectively verifiable necessity (para. 26).

In Mann, Iacobucci J. accepted the need for a general policepower to conduct pat-down searches, but solely in appropriate circumstances.

He was mindful of the risks of abuse of such a power, ashe observed that “[s]uch a search power does not exist as a matter of course: the officer must believe on reasonable grounds that his orher own safety, or the safety of others, is at risk” (para. 40). [60] Continuing on in MacDonald at paras. 40 to 45: [40] On balancing these factors, I am convinced that the duty of police officers to protect life and safety may justify the power toconduct a safety search in certain circumstances.

At the very least, where a search is reasonably necessary to eliminate an imminentthreat to the safety of the public or the police, the police should have the power to conduct the search. [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. Inmy view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity ofsafety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police.

Given thehigh privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonablegrounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v.Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vagueconcern for safety.

Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from theknown facts of the situation” (Mann, at para. 41). [42] A safety search is a physical search that could uncover a broad array of information about an individual. In the instant case,even though all Sgt. Boyd did was push the door open slightly further, this had the potential to reveal to the officers any number of thingsabout Mr. MacDonald, as they could now see more of the interior of the unit. However, because Sgt. Boyd had reasonable grounds tobelieve that Mr.

MacDonald was armed and dangerous, the further opening of the door was authorized by law. [43] As for the second prong of the Collins test, it cannot be disputed that the lawful authority underlying safety searches outlinedabove is reasonable. Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the policeas a social entity. Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for

the police to conduct the safety search in question ( Clayton , at paras. 21, 26 and 31). As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated. [44] This common law power to conduct searches for safety purposes is the reasonable lawful authority for the search carried out by Sgt. Boyd.

The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat. More specifically, the trial judge found that Sgt. Boyd had observed the following when Mr. MacDonald answered the door: 1. Mr.

MacDonald had his hand behind his leg and was clearly holding an object; 2. what he was holding was “black and shiny” and therefore could have been a weapon; and 3. when twice asked what he had behind his back, he refused to answer or to provide any explanation. [45] In my opinion, the search conducted by Sgt. Boyd was authorized by law and the law itself, in the form of a well-established common law principle, is reasonable. As I will explain below, the manner in which he carried out the search was also reasonable. (

b) The Manner in Which the Search Was Carried Out Was Reasonable [ 61 ] In R. v. Chuhaniuk 2010 BCCA 403 , Mr. Justice Frankel made similar comments about the scope and ambit of the police authority to search when officer safety was invoked. At paras. 57, 58 and 59, Mr. Justice Frankel wrote: [57] While the Crown is correct that there was no warrant in Kokesch , I know of no authority for the proposition that a warrant to search one building on a property, without more, gives the police the right to examine the exterior and interior of other buildings on that property without entering them.

This is no doubt because to reach such a conclusion would be to seriously diminish the privacy interests the Charter is intended to protect. To accept the Crown’s submission would mean that officers could attempt to look into every building on a property, even ones located a considerable distance away from the building named in the warrant and with no apparent connection to the criminal activity under investigation.

For example, on the Crown’s theory, had there been a cabin in the woods well away from the clearing in which the Chuhaniuks’ residence was located, the police would have been entitled to approach it, examine the exterior, and look through the windows. [58] This does not mean that the police cannot take reasonable steps to protect themselves and others during the execution of a search warrant.

I recognize, as the Crown pointed out in its submissions, that the execution of warrants can give rise to officer-safety concerns and that those concerns can be heightened when the place being searched is on a multi-structure rural or semi-rural property.

However, the interests of law enforcement must be balanced with the rights of members of the public. [59] In my view, when a warrant has been issued to search one place or premises on a particular property, the police, in the course of executing that warrant, have the authority, at common law, to inspect and enter other places or premises on that property to the extent reasonably necessary to protect themselves and others. However, they cannot take such action as a matter of course, or on the basis of generalized, non-specific, concerns.

Before acting, they must have a reasonable basis for believing there is a possibility that their safety, or the safety of others, is at risk. [ 62 ] In the next paragraph of Chuhaniuk , para. 60 , which I will not quote, Mr. Justice Frankel refers to R. v. Mann 2004 SCC 52 , [2004] 3 SCR 59 , and R. v. Waterfield [1963] 3 All E.R. 659 (C.A.) . [ 63 ] In MacDonald , Mr. Justice LeBel refers at great length and adopts the same principles in both Mann and Waterfield .

Accordingly, in the circumstances of the case at bar, the Crown is required to establish the police officers had reasonable grounds for believing that there was a possibility that their safety was at risk. As set out in MacDonald at para. 41 , "The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter." [ 64 ] In my view Corporal Christianson did not have reasonable grounds to make the decision to search the white trailer on the grounds of officer safety.

He had evidence that there was a marihuana grow operation in the lodge, and that it was likely that one or more people were at the property to maintain the operation. It was reasonable for him to conclude that anyone at the property was probably residing in the white trailer. He did not know anything about the background of the person or persons residing in the white trailer, including whether or not they had a criminal record. There was no information about weapons, including firearms.

The search warrant was being executed during the day and there was nothing obstructing the view between the lodge and the white trailer. Therefore, if the police had gone to the lodge itself and set up a perimeter around it, there would be no reason to think that they could be

surprised by someone coming from the white trailer. I appreciate that, conversely, if someone had a firearm in the white trailer they would have an unobstructed view of the police, but as I said, there was no evidence of any firearms. [ 65 ] Corporal Christianson took the position that the absence of evidence on issues such as the identity of a person or persons at the property, the presence of firearms, et cetera, by itself amounted to a safety risk because he was then entitled to base his actions on a "worst case scenario".

To be clear those are my words, "worst case scenario", but that is in effect what Corporal Christianson was saying. [ 66 ] Further, Corporal Christianson's evidence was that in most instances his practice was to search any and all other buildings and structures that were on the same property as the building or structure that he had a warrant to search. He also said that he would search the adjacent structure and building even when, as here, a Judicial Justice of the Peace had refused to grant a warrant to search that place. [ 67 ] I also note that in this case this was a restricted warrant.

The Judicial Justice of the Peace had clearly set out that the white trailer was not to be searched and he had provided reasons for the denial. However, it appears that Corporal Christianson did not read the denial decision. Constable Bourque had read it. [ 68 ] Where there has been a denial for an entry, the police need to make themselves aware of those reasons if they were provided.

Given the denial decision, the police officers involved should have been acutely aware of the need to ensure that there is clear and objectively verifiable evidence justifying a safety search. [ 69 ] MacDonald and Chuhaniuk set out that the police are not entitled to search premises based on a "safety search" unless they have reasonable grounds to fear for their safety. [ 70 ] In MacDonald , at para. 41 : As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety.

Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41 ). [ 71 ] This court will give considerable deference to police officers who are executing search warrants. Their safety is a valid concern and marihuana grow-ops can be dangerous locations. However, if they decide to utilize the common law to invoke a "safety search" then they must clearly articulate the basis for so doing in order for the court to determine if they have met the test for "objectively verifiable necessity".

In my view, for the reasons set out, the evidence here falls considerably short of that standard. Accordingly, I find that the search of the white trailer was not authorized by law and the accused's s. 8 Charter right was breached. 2. Section 24 (2) Charter analysis: Is the evidence from the lodge admissible? [ 72 ] In R. v. Reddy , 2010 BCCA 11 , 251 C.C.C. (3d) 151 at paras. 91 to 94 , Mr.

Justice Frankel set out an overview of the approach to be taken based on Grant in determining the admissibility of evidence obtained in breach of a Charter right: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication of the case on its merits.

See also: Harrison at para. 2. [92] With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [93] As for the second factor—impact of the breach on the accused—it was observed that “[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive”. The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77.

[94] The last factor—society’s interest in a decision on the merits—involves the question of “whether the truth seeking function of thecriminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of the evidenceis an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although “seriousness of theoffence” remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on thelong-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction: para. 84. [73] I will now turn to deal with each of the Grant factors. 1. Seriousness of the Charter breach. [74] In arguing exclusion, the defence argues that the police deliberately flouted the decision of the Judicial Justice of the Peace byentering the white trailer.

The defence position is that the court should find that the police acted in bad faith. In support of thatargument, the defence points out that there was considerable case authority in existence, well prior to the date of the incident,establishing clear boundaries for officer safety searches, and the police did not follow those rules. [75] The Crown argues that the police officers were acting in good faith, and that if the court finds that they were not, then there isno basis to make a finding that there was bad faith.

The Crown argues that the police actions were based on honest, but mistaken belief,that it was necessary to search the white trailer and they had the authority to do so. [76] In a recent decision of R. v. Mandziak, 2014 BCCA 41, the issue of bad faith was set out and dealt with by Madam JusticeGarson at paras. 40 to 44 as follows: [40] In R. v.

Perjalian, 2011 BCCA 323 Neilson J.A., speaking for the Court, said that the finding of good faith or bad faithis not determinative of the analysis, (at para. 62): While the trial judge’s treatment of these breaches in his s. 24(2) analysis was brief, I find no error in his assessment of them. There isnothing in Grant to suggest a finding of good or bad faith on the part of the police is decisive in that analysis. That question is just one ofseveral factors relevant to assessing the seriousness of the violation.

The trial judge did not make an express finding as to the severity ofthe breaches, but it is implicit in his reasons that he viewed them as resting at the lower end of the spectrum. I am satisfied thatassessment was justifiable. There was nothing deliberate or flagrant about the brief delay in informing Mr. Perjalian of the reason for hisinitial detention, his arrest, or his right to counsel. He was detained for about three minutes before that information was provided, andevents moved quickly during that time, refocusing the object of the investigation. These Charter violations were thus fleeting and, whileMr.

Perjalian argues they undercut his ability to make an informed decision about how to conduct himself with the police, it is difficultto envisage how prompter attention to his s. 10 rights would have altered his conduct in any meaningful way. [41] More recently this Court has discussed the manner in which findings of bad or good faith fit within the Grant inquiry.

In R. v.Voong, 2013 BCCA 527 MacKenzie J.A., speaking for the Court, considered the question of the seriousness of the breach ofthe accused’s Charter protected rights by a junior police officer, (at para. 94): Although the judge found Constable LaValley to be an honest and credible witness, the absence of bad faith does not equate to goodfaith, nor does the absence of good faith equate to bad faith.

Here, the errors were apparently due to lack of supervision andinexperience. [42] MacKenzie J.A. noted the lack of experience, and lack of adequate supervision over the inexperienced officer, the lack ofurgency in seeking the warrant, and that the trial judge had found the officer credible. She found that the first stage of the Grant inquiryought to have favoured exclusion of the evidence.

Ultimately, she held that the evidence should not be admitted under s. 24(2). [43] It should be remembered, though, that Grant does not speak of bad faith, but rather of “deliberate and egregious conduct thatdisregards the rights of the accused” while emphasizing that the inquiry is one that seeks to balance all of the relevant factors: at paras.107-108. The conduct here in question was deliberate. Although the evidence did not permit the judge to conclude that the officer didnot act in bad faith, neither could she conclude that he acted in bad faith.

There was simply not sufficient evidence before her to makeeither finding. [44] The knowing or deliberate nature of the conduct would tend to place the police conduct on the more serious end of the spectrumunder the first branch of the Grant inquiry. On the other hand, the seizure of the passport, while not specifically addressed to Mr.Mandziak at McQueen Road, did contain this address as his permanent address. The remaining impugned exhibits were his birthcertificate and motor vehicle insurance papers related to a vehicle parked in the driveway. All these documents were on a table.

Thepolice officers could have noted the particulars from them even if they had not been seized. Nonetheless, the deliberate nature of theofficer’s conduct remains a concern on the first branch of the Grant test. I shall return to the impact of the seriousness of the breachwhen I consider the balancing of factors dictated by the Grant analysis. [77] In addition, in Mandziak, the court at paras. 38 to 39 quoted extensively from the decision of Madam Justice Ryan in R. v.Smith, 2005 BCCA 334. At para. 61 of Smith, referred to at para. 39 of Mandziak, Madam Justice Ryan wrote:

[61] To sum up, good faith connotes an honest and reasonably held belief. If the belief is honest, but not reasonably held, it cannot besaid to constitute good faith. But it does not follow that it is therefore bad faith. To constitute bad faith the actions must be knowingly orintentionally wrong. [78] In the circumstances of the case at bar, I cannot find that the police were acting in good faith. I find that they had an honest, butnot reasonably held, belief that they were entitled to enter the white trailer based on officer safety.

Among the factors I considered is thatthe case law establishing the boundaries of officer safety searches had been clearly delineated well prior to April 4, 2012, the date of thisincident.

MacDonald, which is decided just this year, did not expand the common law right to search based on officer safety, it onlyserved to restate legal principles, which had been made very clear previously, including in Chuhaniuk. [79] These principles were also mentioned in a number of the case authorities referred to by the Crown and defence, including R. v.Lau, (2003) 2003 BCCA 337 175 C.C.C. (3d) 273 (BCCA), paras. 31, 32 and 34; and R. v.

Le, 2005 BCPC 47 adecision of my brother Judge Hoy, paras. 25 to 32. [80] In addition, the fact that there had been a denial to search the white trailer should have heightened the concerns of the policeofficers as to the standard of the evidence that was sufficient to entitle them to conduct an officer safety search. Clearly that was not thecase. Within minutes of becoming aware of the denial, without taking any further investigatory steps, Corporal Christianson made thedecision to "secure" the white trailer.

The police officers, including Corporal Christianson, who was in charge, should have known thatthe evidence was insufficient to justify such a search, and therefore any belief by the police officers that they were permitted to conduct asearch for officer safety was not a reasonably held belief. [81] In assessing the issue of good faith and bad faith, I carefully considered the evidence of all of the police officers and found themto be forthright and candid about their actions. There was no attempt to deceive or mislead the court in any of their evidence.

Furthermore, the manner in which they carried out the search of the entire property, and of the white trailer, was appropriate andreasonable. Accordingly, I do not find that the police were acting in bad faith, that is their actions were knowingly or intentionallywrong. [82] That said, it was a knowing and deliberate act of the police officers to enter the white trailer in the face of the denial and thedenial decision. They knew that the request to search the white trailer had been denied. As well, they knew that the white trailer was aresidence. There were no exigent circumstances.

The police made a deliberate decision to search the white trailer immediately after theyreceived the search warrant, and prior to their attending the property. [83] Police officers are expected to know and execute their duties in accord with both the provisions of the law, both statute andcommon law, and clearly they did not do so in this case. For these reasons, the seriousness of the breach is on the higher end of thespectrum, and tends to favour exclusion of the evidence. 2. Impact of the breach on the accused. [84] A person's home has always been protected by the common law.

One's privacy rights in their home are paramount to each ofour common laws. There is nothing more important than the right we all have to be safe and secure in our homes. Those rights shouldnot and cannot be trampled upon. In this case, four police officers entered the accused's residence and walked throughout it, includingthe living room, bathroom, and bedroom. The impact on one's privacy rights in their residence is extremely high, and therefore tends tofavour exclusion of the evidence. 3.

Society's interest in the decision on the merits. [85] The circumstances in Le (supra) are strikingly similar to those of the case at bar. Le was also referred to by Mr. Justice Frankelin Chuhaniuk, specifically at paras. 85 to 87. Although Le was decided before Grant, Judge Hoy's comments at paras. 46 to 48 of Leabout society's interest in a decision on the merits are relevant to a Grant analysis, and echo my views with respect to the circumstancesof the case at bar. [86] I turn now to citing from Le at paras. 46 to 48: [46] This was a sophisticated grow operation.

There were multiple stages of plant growth in various buildings. In one of the barns thedimensions of the cultivation was being expanded. With a total of 3310 plants and an estimated value of $1.3 million, it is described byan officer as one of three of the largest marijuana cultivation charges he has investigated. This case far exceeds what is normallyencountered. [47] These types of offences must be condemned. This was a highly organized operation which required knowledge not only ofhorticulture but as well a sophisticated network of others to initiate its production and then attend to its distribution.

I do not intend todiscuss the darker side of the production of marijuana but needless to say it is an offence which has an adverse effect on society as itpotentially attracts all manner of criminality. [48] Keeping in mind society’s concerns and the particulars of this offence, one must also weigh the nature and degree of the breach. Society has placed a high value on our constitutional rights for the benefit of all individuals. While the state’s interest to intrude on theprivacy interests of the citizen for the purposes of law enforcement is an important pursuit, it must not be done in a fashion which ignores

the rights of the citizen to be free from the state’s intrusion. To evaluate these competing interests, the criminal code has an extensivemechanism of preauthorization to allow the state to intrude.

This procedure safe guards not only the privacy rights of the citizen, but aswell gives legal authority to interfere with such rights after a judicial evaluation of the merits of a warrant application has been made. [87] One of the issues raised by the Crown in considering whether or not the evidence should be excluded is that there is no causalor temporal connection between the search of the white trailer and the evidence seized from the lodge. The Crown points out that therewas no evidence seized from the white trailer and there is no connection between the two searches.

The keys were taken from the whitetrailer, but the police would have gained entry in any event. [88] The defence position is that the searches of the two locations should be treated as one search and a breach of one location isrelevant to the search at the other. Judge Hoy also dealt with this issue in Le. At para. 52 he wrote: From R. v. Flintoff (ON CA), (1998) 126 CCC (3d) 321 (OCA), I further find that there is a temporal link between allof the evidence seized and the s. 8 Charter violation. Without the warrant, access to the property would not have been possible.

In spiteof its restrictions it gave the police the opportunity to use it in conjunction with the ill founded rational of officer safety to intrude on thedefendant’s privacy. The link between the Charter violation and the recovery of evidence was not remote. It occurred in the course of asingle event. Keeping in mind the entirety of the evidence, and my findings concerning the severe nature of the breach, I find that theadmission of the evidence would bring the administration of justice into disrepute.

All of the evidence seized is excluded. [89] While there may not have been any evidence seized in the white trailer, it was searched during the course of the policeexecuting the search warrant on the property on which it and the lodge were situated. The correct way to view this, therefore, is as onesearch, and a breach of the s. 8 Charter rights of the accused with respect to the white trailer is relevant to the search and seizure ofevidence from the lodge. [90] Further to Flintoff, I find that there is a sufficient temporal or causal connection.

While I have not found any bad faith on thepart of the police, the law at the time was quite clear about the limits of their powers to conduct officer safety searches. The conduct ofthe police in not following the law, and the search of the private residence of the accused, amounts to a serious breach, and a significantimpact on the privacy rights of the accused.

Given the lack of evidence about officer safety concerns, any reasonable person would, andshould, have grave concerns about the police proceeding with the search of the white trailer in the face of the denial and/or the denialdecision. [91] Accordingly, after balancing all of the applicable factors, I have concluded that overall the administration of justice would beadversely affected by the admission of the evidence seized by the police from the lodge. I rule, therefore, that all of the evidence seizedby the police from the lodge is inadmissible. PCJ, T. Wright